Abstract

This article examines the impact of the decisions in R v Dica (2004) and R v Konzani (2005) on the extent of the defence of consent. As well as analysing the impact of the decisions on the extent of the defence where a defendant faces criminal liability for the transmission of sexual disease, it also considers and examines the wider issue of whether the presence or absence of consent forms part of the actus reus of the relevant assault offence or whether it is a separate and independent element that stands outside of the conduct component of the offence. It is argued that recent developments have given insufficient consideration to accepted doctrine and revived much criticised principles by focusing on unknown circumstances of justification rather than the defendant's state of knowledge and mind.